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Document
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PO-2238-I
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File #
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PA-000370-4
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Institution/HIC
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Ministry of Community Safety and Correctional Services
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Summary
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NATURE OF THE APPEAL:
The Ministry of the Solicitor General (now the Ministry of Community Safety and Correctional
Services) (the Ministry) received a request under the Freedom of Information and Protection of
Privacy Act (the Act), from a member of the media, for access to “all video footage recorded by
the Ontario Provincial Police (OPP) at Ipperwash Provincial Park (Ipperwash) from September
5-7, 1995” and “all photos taken by the OPP at Ipperwash Provincial Park from September 5-7,
1995."
The Ministry identified a number of responsive videotapes and photographs, and denied access
to all of them. The requester (now the appellant) appealed.
After conducting various inquiries under the Act, I issued two interim orders (Interim Order PO-
2033-I and Interim Order PO-2056-I), one reconsideration order (Reconsideration Order PO-
2063-R) and one final order (Final Order PO-2092-F).
As it turned out, Final Order PO-2092-F did not end the appeal. The Ministry brought an
application for judicial review of that order, claiming that I erred in finding that videotaped
surveillance records purportedly obtained under Parts VI and XV of the Criminal Code of
Canada were accessible under the Act. However, this application was later abandoned when the
Ministry determined that there were no warrants to support the Criminal Code arguments. At
that point, the Ministry changed its position with the respect to the records under consideration in
Final Order PO-2092-F, now claiming that they were exempt under section 21 of the Act
(invasion of privacy). The Ministry also advised the appellant that more responsive records had
been located and that they too qualified for exemption under section 21.
The appellant appealed these two new decisions. She continued to believe that more responsive
records should exist, and also complained that certain provisions of Interim Order PO-2033 had
still not been complied with.
After conducting another inquiry, I issued Interim Order PO-2221-I. In it, I made findings
regarding the application of sections 21 and 23 of the Act (the public interest override), ordering
most of the records to be disclosed and upholding the Ministry’s decision to deny access to a
small portion of one record (see Provisions 1 and 2 of Interim Order PO-2221-I). The Ministry
has complied with these order provisions.
Interim Order PO-2221-I also included two provisions dealing with the outstanding search
issues. Provision 5 required affidavit evidence on the adequacy of the Ministry’s search for
records from OPP Superintendent Susan Dunn, and Provision 6 required corresponding affidavits
from various OPP officers with personal knowledge of the various photographic and videotaping
activities taking place at Ipperwash during the time period identified in the appellant’s request.
These issues remain outstanding and will be addressed in a subsequent order.
[IPC Order PO-2238-I/February 5, 2004]
- 2 -
Interim Order PO-2221-I also dealt with two other issues, and they are the subject matter of this
order:
1. Has the Ministry adequately responded to a number of issues
identified during my review of the various videotape records?
(Provision 3).
2. Is the Ministry in compliance with Interim Order PO-2033-I?
(Provision 4)
DISCUSSION:
Because my findings for the two issues under consideration in this interim order overlap, I have
decided to outline the background and the parties’ representations for each issue separately first,
and then make my findings on both issues together.
HAS THE MINISTRY ADEQUATELY RESPONDED TO THE ISSUES IDENTIFIED
DURING MY REVIEW OF THE VARIOUS VIDEOTAPE RECORDS?
Background
After reviewing the various videotape records provided to me in the context of my inquiry
leading to Interim Order PO-2221-I, I wrote to the Ministry asking for answers to certain
questions, including the following:
On Maintenance Tape 9, there is a section of approximately 20 seconds (18:32:20
to 18:32:40) where the audio portion of the tape is not audible. What is the
explanation for this?
The Ministry’s initial response to this question was:
This is a technical problem and the OPP are attempting to get the audio enhanced.
In a follow-up letter the Ministry stated:
With respect to [my question] regarding the audibility of a section of the
Maintenance Building Video 009, we are enclosing a floppy disk which contains
the enhanced version of the portion of the video. The OPP have advised that this
is the best quality of the audio that they were able to produce.
I reviewed the “enhanced version” provided by the Ministry, but the 20-second portion was still
inaudible.
I gave the Ministry an opportunity to provide a fuller explanation, but received no additional
details.
[IPC Order PO-2238-I/February 5, 2004]
- 3 -
I decided it was necessary for me to view the original videotape records in order to satisfy myself
that any outstanding issues regarding these records was not a function of the quality of the copies
of these records provided to me by the Ministry. In the context of reviewing the “original”
records, I identified a number of additional issues, which are described in Interim Order PO-
2221-I.
At this point, I was not satisfied that I had been provided with full access to all of the various
responsive records identified by the Ministry. Accordingly, I included Provision 3 in Interim
Order PO-2221-I, which reads as follows:
I order the Ministry to provide me with an affidavit sworn by Superintendent
Dunn attesting to the following:
- confirming that I have been provided with access to all original
Category 2 and Category 4 videotape records
- explaining the following apparent gaps in the audio portion of
various videotape records:
- Maintenance Tape 8 from 13:45:05 to 13:45:33
- Maintenance Tape 8 from 13:54:06 to 13:54:23
- Maintenance Tape 9 from 18:08:55 to 18:09:15
- Maintenance Tape 9 from 18:32:20 to 18:32:40
- explaining why some Maintenance Tapes contain both audio and
video footage (Maintenance Tape 9, most of Maintenance Tape 8
and some of Maintenance Tape 10), while others have only video
(Maintenance Tapes 1-7 and Gatehouse Tapes 1-6); and further
explaining why even when the tapes contain audio, the audio
footage is not constant (e.g., there is no audio on Maintenance
Tape 8 from the beginning to 12:39:53, and on Maintenance Tape
10 from 2:05:43 to the end).
- explaining why, although the various videotapes were described as
original copies, Maintenance Tape 9 begins with footage that is
time-coded as 23:03:54 (the start time for Maintenance Tape 10),
only to be interrupted and re-started at the correct time of 16:56:43.
- explaining why Maintenance Tape 7 ends with the time-code at
10:38:42 and Maintenance Tape 8 begins with the time-code at
10:46:33, and why footage for the time period 10:38:43 to
10:46:32 is not contained on either of these videotapes.
I received an affidavit from Superintendent Dunn in response to this order provision.
[IPC Order PO-2238-I/February 5, 2004]
- 4 -
Superintendent Dunn’s affidavit
Superintendent Dunn addresses Provision 3 of Interim Order PO-2221-I in paragraphs 10-14 of
her affidavit, which read as follows:
10. In Provision 3 of Interim Order PO-2221-I, Assistant Commissioner Tom
Mitchinson asks that I confirm that he has been provided with access to all
original Category 2 and 4 videotape records. To the best of my knowledge and
based upon the information available to me at this time, the Assistant
Commissioner has been provided with access to all original Category 2 and 4
videotape records at his request when those records were brought to his office by
the O.P.P. on Sunday December 22, 2003.
11. In Provision 3 of Interim Order PO-2221-I, Assistant Commissioner Tom
Mitchinson identifies apparent gaps in the audio portion of various videotape
records and requires explanations for those gaps. I have made detailed inquiries
about the audio gaps and based upon the information provided to me by the
officers gathering the information, I am satisfied the gaps are not the result of any
editing conducted on the videotapes. Rather, they are caused by the technology of
the equipment used to record the audio. This equipment is specially designed to
facilitate covert electronic surveillance and a more detailed explanation of how it
operates would compromise its current and prospective use.
12. In Provision 3 of Interim Order PO-2221-I, the Assistant Commissioner requests
an explanation for why some videotapes contain both video and audio, while
others do not. I have made inquiries and I am satisfied that the absence of audio
on some videotapes is not the result of editing. The videotaping and audiotaping
conducted were controlled separately and the audio was not turned on until later
during Maintenance Tape 8, which is the explanation why the beginning of Tape
8 has no audio. In respect to Maintenance Tape 10, there was no one in the
Maintenance Shed after 2:05:43 and therefore there was no recorded sound on
Tape 10 after that time.
13. In Provision 3 of Interim Order PO-2221-I, the Assistant Commissioner requests
an explanation for why the video footage in Maintenance Tape 9 starts, is
interrupted, and then starts again at an earlier recorded time. The video log does
not offer any explanation for the time codes at the commencement of Tape 9. The
Ministry has not had the opportunity within the timeframe of the Order to confirm
with an O.P.P. technician what, if any technical explanation could exist but will
do so as soon as possible.
14. In Provision 3 of Interim Order PO-2221-I, the Assistant Commissioner requests
an explanation for why there is a 7-minute and 51-second gap in the videotaping
between the end of Maintenance Tape 7 and the beginning of Maintenance Tape
8. The video log confirms that Tape 7 ended and Tape 8 commenced at the stated
times and confirms that there was no videotaping conducted during that 7-minute
[IPC Order PO-2238-I/February 5, 2004]
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and 51-second time period. To the best of my knowledge and based upon the
information provided in the video log, the gap in videotaping was not the result of
any editing done to this tape.
To date, Superintendent Dunn has provided no additional information regarding the issue
referred to in paragraph 13.
The appellant’s response
The appellant takes the position that the responses provided by Superintendent Dunn are
inadequate. She states:
With respect to paragraph 11, regarding apparent gaps in the audio portion of
various videotaped records, [the appellant] submits that it is not sufficient for the
Ministry to merely state that the gaps “are caused by the technology of the
equipment used to record the audio.” Superintendent Dunn should be required to
explain what it is about the technology that causes these gaps. Furthermore,
although Superintendent Dunn has given evidence that the gaps are not the result
of editing, it is not clear whether they are, or could have been, caused by an OPP
decision not to record certain aspects of the wiretapped conversations.
Accordingly, Superintendent Dunn should be required to provide a full
explanation of this matter.
With respect to paragraph 12 of the Affidavit, Superintendent Dunn should
explain why the audio recording equipment was not turned on until 12:39:53 of
September 7, 1995, and who made the decision to videotape but not audiotape the
occupiers prior to that time.
Paragraph 13 of the Affidavit is clearly insufficient, as the Ministry has not even
consulted its own technicians to obtain an explanation for the Assistant
Commissioner’s question. The Ministry’s explanation that it has not had time for
such consultations “within the timeframe of the Order” is disingenuous. The fact
that the copy of Maintenance Tape 9 that the Ministry claims to be raw footage
starts with a timecode that could only appear at the end of the original tape was
apparent when it was viewed by members of the Stoney Point First Nation
community on September 3, 2003, and was noted at that time in the presence of
various OPP officers and Ministry counsel.
The appellant goes on to quote from a letter she sent to the Ministry on September 19, 2003
substantiating her position on paragraph 13, and continues:
Accordingly, the Ministry has now had more than four months to obtain an
explanation for the timecode discrepancy or to confirm, as is obvious, that the
tape is not an original, and to make efforts to find the raw footage of Maintenance
Tape 9. This should be remedied immediately.
[IPC Order PO-2238-I/February 5, 2004]
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With respect to paragraph 14 of the Affidavit, merely stating that the videotape
has not been edited is insufficient. Superintendent Dunn should explain why no
videotaping was conducted during the 7 minute and 51 second time period
between Maintenance Tapes 7 and 8, including who decided to stop videotaping
during that period.
IS THE MINISTRY IN COMPLIANCE WITH INTERIM ORDER PO-2033-I?
Background
On September 16, 2003, I received an affidavit sworn by Superintendent Dunn outlining the
steps taken by the Ministry to comply with Provisions 1 and 2 of Interim Order PO-2033-1. This
affidavit was provided to the appellant.
In her appeal documentation, the appellant pointed to a number of perceived deficiencies in the
various steps outlined by Superintendent Dunn, and identified reasons for her view that the
provisions of Interim Order PO-2033-I have not yet been fully complied with.
In my Notice of Inquiry in the current appeal, I required Superintendent Dunn to swear another
affidavit addressing all of the evidence on this issue provided by the appellant in her appeal
documentation and in correspondence sent by the appellant to the Ministry between August 25,
2003 and the due date for representations in this inquiry.
Superintendent Dunn’s affidavit
I received the requested affidavit from Superintendent Dunn, which I also shared with the
appellant. In it she takes the position that the Ministry has fully complied with Interim Order
PO-2033-I, with the possible exception of confirming that the Category 2 videotape FOI #6
shown to the appellant was an original record. In that regard Superintendent Dunn states:
In her submissions, at page 44, the Appellant alleges that the Category 2
videotape labelled FOI #6 is not an original videotape because the segments on
the tape could not have been recorded in the order that they appear on the tape.
To the best of my knowledge, this record is also an original document. However,
the Ministry was unable, before the swearing of this affidavit, to make inquiries
directly of the officers involved in the making of the videotape. Those specific
officers are individuals from whom [the Commissioner’s Office] is ordering
affidavits and therefore they have not been engaged in this inquiry on the advice
of their counsel. Nonetheless, O.P.P.A. [Ontario Provincial Police Association]
counsel has been assisting in facilitation communication with the officers and the
Ministry will provide a response to this question once information from these
officers has been obtained.
[IPC Order PO-2238-I/February 5, 2004]
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The appellant’s response
In general, the appellant questions the veracity of Superintendent Dunn’s affidavit, since she has
no first-hand personal knowledge of many of the statements she attested to and it is not apparent
that she consulted with persons having first-hand knowledge necessary to permit her to make the
various statements. For example, the appellant appears to accept that issues relating to the socalled
“Selected Wescam Shots” videotape (FOI Videotape 5) have been addressed by
Superintendent Dunn, but takes the position that “an OPP officer with personal knowledge of
this matter should be required to provide this information”. The appellant also states:
… to the extent that Superintendent’ Dunn’s Affidavit was not based on
information from those who were personally involved in the OPP operations at
Ipperwash …, all such evidence should now be checked with the appropriate
individuals and corrected or supplemented if necessary.
As far as the other records are concerned, the appellant disputes the accuracy of Superintendent
Dunn’s outline of the various steps taken by the parties in attempting to ensure that original
records were provided to the appellant for viewing, but appears to accept that, with one
exception, the assurances she sought from the Ministry regarding these records have now been
provided.
The one exception is FOI Videotape 6. The appellant submits that further details regarding this
record are required, which is apparently acknowledged by Superintendent Dunn in the portion of
her affidavit quoted above.
FINDINGS
The evidence provided in Superintendent Dunn’s affidavit does not adequately address the
various issues raised by me in Provision 3 of Interim Order PO-2221-I.
Although Superintendent Dunn states that, to the best of her knowledge and based upon the
information available to her at the time she swore the affidavit, the records provided to me for
viewing in late December were original records, her affidavit evidence does not convince me that
that was the case. Perhaps the best example is Maintenance Tape 9, which begins with a timecode
of 23:03:54, is then interrupted, and reverts to a different earlier time-code of 16:56:43. Is
it possible for this to happen on an original videotape? Is it not reasonable to presume that the
tape must have been copied and edited? Perhaps there is a satisfactory explanation, but
Superintendent Dunn’s reference to having reviewed the video log as the basis for concluding
that the record is an original is not sufficient evidence to overcome the reasonable presumption
that it is not, and no further evidence has been provided. As the appellant points out, and I
concur, the Ministry has had more than enough time to obtain any technical explanations but has
failed to do so.
As far as compliance with Interim Order PO-2033-I is concerned, because it essentially involves
providing the appellant with viewing access to all original videotape records, I must conclude
that the affidavit provided pursuant to Provision 4 of Interim Order PO-2221-I is also inadequate.
[IPC Order PO-2238-I/February 5, 2004]
- 8 -
It is my understanding that the “original” records provided to me for viewing in late December
are the same records viewed by the appellant at an earlier date. That being the case, my concerns
regarding whether original records have been provided to me would necessarily apply to the
appellant as well. To this extent, I am not satisfied that the Ministry has complied with Interim
Order PO-2033-I.
As to the various identified audio gaps, while I can accept that the video and audio components
of the electronic surveillance technology are controlled separately, the evidence in
Superintendent Dunn’s affidavit is not sufficient to explain why the audio track on a tape would
be turned off for 20 seconds in the middle of a phone conversation, nor why long sections of
various tapes include an audio track even when no occupiers are being videotaped, yet at other
times the audio was turned off for that very reason.
At paragraph 11 of her affidavit Superintendent Dunn expresses concern about providing a more
detailed explanation of the operation of covert electronic surveillance equipment. I would
simply remind the Ministry that any legitimate concern in this respect can be addressed by the
application of the confidentiality criteria applied in sharing one party’s representations with
another. The parties in this appeal are well aware of this office’s policy for the receipt and
sharing of representations as outlined in Practice Direction 7.
I have decided that in order to obtain the necessary information to deal with Provisions 3 and 4
of Interim Order PO-2221-I, I will need to summon the appropriate OPP officials, pursuant to
section 52(8) of the Act, and require them to attend before me and give sworn evidence relating
to the various issues that remain outstanding. I will issue my summons for Superintendent Dunn
today. Because I do not know the identity of the other OPP officials, I will include a provision in
this interim order requiring the Ministry to provide me with the information that I will need to
summon them as well.
INTERIM ORDER:
1. I find that the affidavit provided to me pursuant to Provisions 3 and 4 of Interim Order
PO-2221-I is inadequate.
2. I order the Ministry to provide me with the following information by February 12, 2004:
- the names and contact information for all OPP officers, employees and/or
former officers/employees who created each videotape record identified to
date by the Ministry as responsive to the appellant’s request, together with
specific details as to which officer/employee created which record;
- the names and contact information for all OPP officers, employees and/or
former officers/employees who have been responsible for storage and
handling of each videotape record from the date of its creation to the date
of this order, including specific details as to which officer/employee stored
and/or handled which record and when;
[IPC Order PO-2238-I/February 5, 2004
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Legislation
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FIPPA
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21(1)
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Section 23
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52(8)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Feb 05, 2004
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Type
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Order
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Orders and Reports Considered
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